A

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

----- GENERAL MATTERS ----JURISDICTION OVER THE

SUBJECT MATTER
It is the authority to hear and
determine a particular criminal case.
It is derived from law.
An objection that court has no
jurisdiction may be made at any
stage; right to object can never be
waived.

JURISDICTION OVER THE

PERSON OF THE ACCUSED
It requires that person charged be
arrested, or voluntarily submitted.
It may be acquired by consent of
accused, or by waiver of objections.
If accused fails to object in time, it is
waived.

----- JURISDICTION OF CRIMINAL COURTS ----MTC

MeTC
MCTC

RTC

Imprisonment: 6 years & less

Fine: P4,000 or less;
Criminal
cases
of
government
officials,
whose
imprisonment or fine is same as above, and lower than
SG 27;
Damage to property through criminal negligence;
Summary Procedure (no hearing; only filing of pleadings)
for violations of:
traffic laws;
rental law;
municipal/city ordinance; and
other criminal cases where penalty is:
Imprisonment of not exceeding 6 months;
or of fine not exceeding P10,000; and
BP 22 cases.
Imprisonment: more than 6 years
Fine: more than P4,000;
Criminal cases of government officials , whose
imprisonment or fine is same as above, and lower than
SG 27;
RA 9165;
Libel;
Intellectual Property;
Election criminal cases; and
Appellate jurisdiction over all cases decided by the MTC,
MeTC, and MCTC.
Take Note:
Jurisdiction over Complex Crimes
Jurisdiction is with the trial court having the
jurisdiction to impose the maximum and most
serious penalty imposable.
Jurisdiction over Continuing Crimes
Courts of territories where the essential
ingredients took place have concurrent
jurisdiction, but the court which first acquires
jurisdiction excludes other courts. (ex. Estafa,
Libel)
Jurisdiction over crimes punishable by Destierro
MTC
Habitual Delinquency = not considered in
determining jurisdiction because it is not a crime.
RTC can issue Hold Departure Orders (HDO),
while MTC cannot

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

HDO one cannot leave

Watch list Order one can leave
Look-out Order one can be arrested to aid
the authorities to enforce the law

Officials covered:

SG 27, and higher

Provincial
and
officials,
including
Sanggunian and Department Heads
Officials of diplomatic service: Consul and
higher
Philippine Army and Air Force Colonels,
Naval Captains, and higher ranks
PNP: Provincial Director and Senior
Superintendent, or higher
Prosecutors: City/Provincial
President /Directors /Trustees /Managers
of GOCC, state universities or educational
institutions/foundations, including student
regents

Members and officials of Congress: SG 27 and

up

Members of the Judiciary, without prejudice to

Constitutional provisions

Chairmen and members of Constitutional

Commissions,
without
prejudice
to
Constitutional provisions
Anti-Graft and Corrupt Practices Act;
Offenses/Felonies committed by public officials and
employees, simple/complexed, in relation to their office
(if absent or if not alleged, the crime is with the regular
courts);
Bribery, Corruption of Public Officials;
Marcos Ill-Gotten Wealth;
Violation of Code of Conduct and Ethical Standards;
Plunder Law;
Anti-Money Laundering, when committed by a public
officer; and
Gift-giving Decree.

Sandiganbaya
n

EXEMPTIONS:
Election offenses
RTC has jurisdiction even if committed by
public officials with SG 27, AND in relation to
their office
Court Martial cases
Take Note:
If public officer is not SG 27 but the office was a
constitutive element of the offense, regular courts
have jurisdiction subject to appeal before the
Sandiganbayan.
Before the Sandiganbayan, the extent of
participation (principal, accomplice, or accessory)
does not matter.
As long as one of the accused is under the
jurisdiction of the SB, even if the other is not a
public officer, both can be charged before the SB.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Ombudsman

Malfeasan

ce/Misfeasance or omission by a public officer

Family Courts

Court of Tax
Appeals

Take Note:
The crime need not be related to official duties.
Mere fact that one is a public officer is enough for
OMB to exercise jurisdiction.
OMB is not a court; it is only an investigative body.
It can dismiss a complaint outright.
It can file an Information even if there is a pending
Motion for Reconsideration.
It has primary jurisdiction over cases cognizable by
the Sandiganbayan.
It can take over at any stage of the investigation by
the DOJ.
The Office of the Special Prosecutor is under the
OMBs authority.
Accused is below 18 years old, but not less than 9 years
old.
Victim is a minor at the time of the commission of the crime,
PROVIDED: If the minor is guilty, the sentence
shall be suspended without a need of an
application.
Criminal violations of the NIRC, or of the Tariff and Customs
Code.
Principal amount of taxes and fees, exclusive of charges
and penalties, is less than 1M.
If no specified amount, jurisdiction is with regular
courts; CTA shall only be appellate.
Appellate jurisdiction:
RTC (original jurisdiction);
Petition for Review of RTCs order

----- REQUISITES FOR A VALID EXERCISE OF

CRIMINAL JURISDICTION ---JURISDICTION OVER
THE SUBJECT
MATTER
Conferred:
By law, not by the
Rules

JURISDICTION OVER
THE TERRITORY
The offense or any of its
elements should take
place
within
the
territorial jurisdiction of
the court.

Determined:
By allegations in
the Complaint or EXCEPTIONS:
Information
Transitory or Continuing
offenses:
on a railroad
train,
aircraft,
public/private
vehicle in the
course of its trip

JURISDICTION OVER
THE PERSON OF THE
ACCUSED
It is acquired by warrant
of arrest, or voluntary
submission.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

It cannot be fixed by the

parties.

Applicable Statute:
Law in force at the time
of institution of the
action
To
determine
jurisdiction, consider the
imposable penalty, NOT
the actual penalty.
GENERAL RULE:
Jurisdiction
once
vested cannot be
withdrawn
EXCEPTION:
If
the
statute
expressly
so
provides
GENERAL RULE:

court
of
municipality/city
where it passed,
including place of
departure
and
arrival
on
board
a
vessel in the
course
of
its
voyage
court of the first
port of entry or
where it passed
Art.2 (RPC) where the
action is first filed
Piracy anywhere
Libel
SC has the power to
change the venue of
trial
to
avoid
miscarriage of justice
BP 22 cases
Sandiganbayan
It cannot be waived.

GENERAL RULE:
Seeking
for
an
affirmative relief is
considered
submission to the
jurisdiction of the
court.
Examples:
filing a MTQ
appearing
for
arraignment
participating
in the trial
posting bail
EXCEPTION:
Questioning courts
jurisdiction is not
voluntary
appearance.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Question
of
jurisdiction may be
raised at any stage
EXCEPTION:
Estoppel by laches

----- PROSECUTION OF OFFENSES ----INSTITUTION OF CRIMINAL ACTIONS

If Preliminary Investigation (PI) is required:

By filing a complaint with the proper officer.

PI is required for offenses where the penalty prescribed by law is at

least 4 years, 2 months, and 1 day, or prision correccional in its
medium, without regard to fine.

Who conducts PI:

Prosecutor; or
Ombudsman
Take Note:
An MTC Judge cannot.
For all other offenses:

By filing a complaint with the office of the Prosecutor, or Information

directly with the MTC/MCTC.

Requiring PI (at
least 4 years, 2
months, and 1 day)
Not requiring PI
Falling under the
Rules on Summary
Procedure

METRO MANILA /
CHARTERED
CITIES
Prosecutor

OUTSIDE
METRO MANILA

Prosecutor

Provincial Prosecutor
/ MTC
Provincial Prosecutor
/ MTC

Prosecutor

Prosecutor

Take Note:
To determine jurisdiction, do not distinguish between Metro Manila and
outside Metro Manila as regards the filing of civil cases. It is only for
filing of a criminal case that you must distinguish.
Effects of institution of a criminal action:
It interrupts the running of the prescriptive period unless otherwise
provided by special laws.
FOR OFFENSES PENALIZED
BY SPECIAL LAWS
It
is
the
filing
of
a
Complaint/Information in court
that interrupts the prescriptive
period. It is not the filing in the
proper officer for the conduct of a
PI.

IF UNDER
MEDIATION/CONCILIATION
/ARBITRATION WITH THE
LUPON
The
prescriptive
period
is
suspended from the time of the
filing of the Complaint with the
Punong Barangay.
The suspension shall not exceed
60 days.

Remedies of offended party if the prosecutor refuses to file an

information:

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Mandamus if there is grave abuse of discretion

New Complaint if there is no double jeopardy
Take up the matter with the Secretary of Justice
File administrative charges against the erring prosecutor
File a criminal action against the prosecutor for negligence to
prosecute or tolerance of the crime
File a civil action for damages for failure to render service
Ask for a Special Prosecutor

May an injunction be issued to restrain criminal prosecution?

GENERAL RULE: No
EXCEPTIONS:

To protect the constitutional rights of the accused.

For orderly administration of justice or to avoid oppression or

multiplicity of actions.

There is a prejudicial question which is subjudice.

Acts of officer are without or in excess of authority.

Prosecution is under an invalid law, ordinance, or regulation.

Double jeopardy is clearly apparent.

The court has no jurisdiction over the offense.

It is a case of persecution rather than prosecution.

The charges are false.

There is no prima facie case and a Motion to Quash on that

ground is denied.

To prevent the threatened unlawful arrest of petitioners.

COMPLAINT
It is a sworn written statement
charging a person with an
offense, subscribed by the
offended party, any peace
officer, or public officer charged
with the enforcement of the law
violated.
It is filed in court, or in the
Prosecutors office.
It is under oath.
It usually refers to private
crimes.
Who can file?

Offended party;

Any peace officer; or

Other public officer charged

with the enforcement of the
law violated.
Take Note:
Want of an oath is a mere defect
of form; it does not affect the
substantial
rights
of
the
defendant.

INFORMATION
It is an accusation in writing
charging a person with an
offense, subscribed by the
Prosecutor and filed with the
court.
It is filed with the court.
It need not be under oath.
It usually refers to public crimes.
Who can file?

City/Provincial Prosecutor
and their assistants; or

Duly appointed Special

Investigators.
Take Note:
Prosecution in the RTC is
always commenced by an
Information, except:
Crimes
against
chastity; and
Defamations.
An
Information
not
properly signed cannot be
cured
by
silence,
acquiescence or even by
express consent.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

SUFFICIENCY OF COMPLAINT OR INFORMATION

Name of the accused (e.g. nickname, John Doe, or Jane Doe).

Designation of the offense.

Act/Omission complained of.

Name of the offended party.

Approximate date of commission of offense.

Place of commission.
GENERAL RULE: A defective Information cannot support a
judgment of conviction.
EXCEPTION: If the defect was cured by evidence during trial and no
objection was raised.
Take Note:
Non-inclusion of eyewitness in the Information does not preclude
the Prosecutor from presenting them during trial.
Failure to allege the time of commission, the remedy is to file a
Motion for Bill of Particulars.
WHO MUST PROSECUTE CRIMINAL ACTIONS
All criminal actions commenced by a Complaint or Information shall be
prosecuted under the direction and control of the Prosecutor.
Take Note:
Once a case is already filed in court, it can no longer be withdrawn or
dismissed without courts approval.
Conditions for a private prosecutor to prosecute a criminal action:

The Public Prosecutor has a heavy work schedule, or there is

no Public Prosecutor.

The Private Prosecutor is authorized in writing.

The authority of the Private Prosecutor must be approved by

the court.

The Private Prosecutor shall continue to prosecute the case

until the end.

The withdrawal or revocation must be approved by the court.

Take Note:
It is only the Solicitor General who may bring or defend actions in behalf
of the Republic, except:
- The prosecution is remiss, and
- The private offended party questions the civil aspect.

WITHIN THE CONTROL AND

DISCRETION OF THE
PROSECUTOR
What case to file;

Whom to prosecute;

Manner of prosecution;

Right to withdraw an Information

before the arraignment even
without notice and hearing.

WITHIN THE CONTROL OF

THE COURT AFTER THE
CASE IS FILED
Suspension of arraignment;
Reinvestigation;
Prosecution by fiscal;
Dismissal of the case;
Downgrading of offense, or
dropping of accused even
before plea.

Take Note:
The Prosecutor who conducted the PI will not be the same Prosecutor
who will prosecute the case.
If the Prosecutor is absent, the hearing of the case will be cancelled.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO

(PRIVATE CRIMES)
Private crimes cannot be prosecuted, except upon a Complaint filed
by the offended party.
WHO MAY PROSECUTE
WHO CAN PARDON OR
CONSENT
Concubinage and Adultery
- Only by the offended spouse to
both offenders, express or
Only by the offended
implied.
spouse.
If divorced, not anymore.
Seduction, Abduction, and Acts - Offended minor if with sufficient
discretion, if she has no
of Lasciviousness
parents or accused is her
Exclusively
and
father and her mother is
successively by:
dead.
- Offended woman;
- Parents, grandparents - Only by express pardon.
or
legal/judicial
guardians, if offended
party is incompetent or
incapable of doing so;
- State.
Defamation
Only by parties defamed.
GENERAL RULE: Pardon should be before filing of the criminal
complaint.
EXCEPTION: Marriage between the offender and the offended party.
Take Note:
Subsequent marriage extinguishes the criminal liability of the
offender, together with the co-principals, accomplices, and
accessories.
EXCEPT:

Marriage was invalid, or contracted in bad faith;

Private libel; or

Multiple rape.
The acquittal or death of one of the accused in Adultery will not bar
the prosecution of the other accused.
HOWEVER:
If the offended spouse died before the filing of the
complaint for Adultery
= it bars further prosecution.
If offended spouse died after the filing of the complaint
= it will not bar further prosecution.
Desistance of the complainant
= it will not bar the prosecution as long as the action has
been instituted, but it is a waiver to pursue civil indemnity.
DESIGNATION OF OFFENSE
It is the statement of the acts or omissions constituting the offense.
Whenever possible, the designation given by the statute, or section of the
statute.
Specific qualifying and aggravating circumstances = cannot be appreciated,
even if proved, unless alleged in the Information.
Mitigating circumstances need not be alleged.
Take Note:
Allegations prevail over the designation of the offense in the
Information.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Accused may be convicted of a crime more serious than that

named in the title if such crime is covered by the facts alleged in the
body of the information and its commission is established by
evidence.

CAUSE OF THE ACCUSATION

GENERAL RULE: Accused cannot be convicted of an offense, unless
it is clearly charged in the Complaint or
Information.
EXCEPTION: There is waiver.
Take Note:
Failure to allege aggravating circumstance cannot be cured by an
amendment of the Complaint or Information after the accused
entered his plea.
DUPLICITY OF THE OFFENSE
Joinder of two or more separate and distinct or different offenses.
Remedy:

Motion to Quash filed before the arraignment, otherwise, there is

waiver and the accused may be found guilty of as many offenses as
those charged and proved during the trial.
GENERAL RULE: A Complaint or Information must charge only one
offense.
EXCEPTIONS:

Complex crimes;

Special complex crimes;

Continuous crimes or delito continuado;

Crimes that can be committed in various modes; and

Crimes of which another offense is an ingredient.

Take Note:
Mala in se felonies cannot absorb mala prohibita crimes.
AMENDMENT OR SUBSTITUTION
AMENDMENT change in either the form or substance of the same offense in
the Information.
Kinds:
- Formal; or
- Substantial.
Take Note:
In civil cases, amendment is done before an Answer is filed, while
here in criminal cases, the reckoning period is before or after plea.
RULES IN AMENDMENT
BEFORE PLEA
AFTER PLEA
Amendment,
formal
or Only formal amendment can
substantial, may be made be made.
without leave of court.
EXCEPT:

Substantial amendment
can be made if it is
beneficial to the accused.
Requirements:
Requirements:

Upon motion by the

With leave of court; and
prosecutor;

Amendment
is
not

With
notice
to
the
prejudicial to the rights of
offended party; and
the accused.

With leave of court.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Example:

Amendment
which
downgrades the nature of
the offense charged, or
excludes any accused.
Take Note:
An Information which is
void ab initio cannot be
amended.
Since
the
exclusion
happens before plea,
there
is
no
double
jeopardy. As a result, the
accused can still be
charged at a later time.

Take Note:
Doctrine of Supervening
Event (the nature of the
crime charged is changed
or upgraded to a higher
crime) amendment is
necessary but there is a
need
for
another
arraignment
of
the
accused
under
the
amended Information.
Substantial amendment in
the
Information
is
generally not allowed
after plea because:
it violates the right of
the accused to be
informed
of
the
nature and cause of
the
accusation
against him; and
it violates the rule on
double jeopardy.

Take Note:
In substantial amendment = the original Information will be
dismissed.
In formal amendment = no need for the dismissal of the original
Information.
Requisites of Double Jeopardy:

Complaint or Information;

Valid plea entered;

Final judgment, or dismissal; and

Subsequent Complaint or Information is filed for:

Same offense; or
Attempt to commit the same; or
Frustration of said offense; or
Offense which necessarily includes the first offense; or
Offense which is necessarily included in the first offense.
SUBSTITUTION
If before judgment, a mistake has been made in charging the proper offense,
the court shall dismiss the original Complaint or Information upon the filing of
a new one, provided accused shall not be placed in double jeopardy.
It is only applicable to original cases, not to appealed cases.
Limitations:
- No judgment yet rendered;
- Accused cannot be convicted of offense charged or offense necessarily
included therein; and
- Accused would not be placed in double jeopardy.
AMENDMENT
Formal or substantial.
If before plea, no need for a leave

SUBSTITUTION
Generally, only substantial.
With leave of court.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

of court.
If as to form only, no need for a
Preliminary Investigation and the
retaking of the plea.

Another Preliminary Investigation

and plea is required for the new
Information.

When is preliminary investigation needed:

There is substitution of Information;

- but if only the mode of commission of an offense is
changed, there is no need.

There is substantial amendment;

There is provisional dismissal;

Other persons are charged;

Under a new Complaint original charge is upgraded; or

Under a new Complaint criminal liability is upgraded.

VENUE OF CRIMINAL ACTIONS
Venue in criminal actions is jurisdictional (where crime is committed).
It cannot be waived or changed by agreement of the parties, or consent of
the defendant.
Take Note:
What can be transferred is the venue of the trial or hearing, but the
place of the institution of the criminal action is still the place where
the crime was committed.
GENERAL RULE: Principle of Territoriality (action must be filed in
the court of territory where the offense or its
elements occurred.
EXCEPTION: Transitory and Continuing offenses.
Take Note:
Offenses committed abroad but can be filed in the Philippines:

Article 2 (RPC); and

Terrorism.
INTERVENTION OF OFFENDED PARTY
GENERAL RULE: The offended party can intervene by counsel
where the civil action for recovery of civil
indemnity is instituted in the criminal action.
EXCEPTIONS:

No civil liability;

Waiver of civil indemnity;

Reserved right to institute a separate civil action; or

Civil action is already instituted.

----- PROSECUTION OF CIVIL ACTION ----RULES ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL
ACTION
GENERAL RULE: When a criminal action is filed, the civil action for
the recovery of civil indemnity arising from the
offense shall be deemed instituted.
Take Note:
Civil liability arising from other source of
obligations (law, contract, quasi-contract,
and quasi-delict) are no longer deemed
instituted.
EXCEPTIONS: The offended party

Waives the civil action;

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Reserves the civil action = it must be done before the

prosecution commences to present evidence; or
Civil action is filed prior to the criminal action.
Civil action is suspended.
There is an option to consolidate the civil action with
the criminal action. It must be done before the
judgment on the merit is rendered.

Take Note:
Counterclaims, cross-claims and Third-party complaint
these are not allowed in a criminal proceeding; claims which
could be the subject thereof may be litigated in a separate civil
action.
Offended party in a criminal case may appeal the civil aspect
despite the acquittal of the accused.
Offended party may compromise the civil aspect of a crime,
provided it is entered into before or during the litigation, not after
the final judgment.
Reservation of civil action is not allowed in:

BP 22 cases;

Cases before the Sandiganbayan; and

Tax cases.
Rules on filing fees of civil action deemed instituted in a criminal
action:

For actual damages = no filing fees.

For moral, nominal, temperate, or exemplary damages, if

specified = filing fees required.
Take Note:
If the amount of damages is not specified, the fees will be a lien on
the judgment.
For BP 22 cases, the filing fees are needed on all kinds of damages
(including actual damages).
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
After the filing of the criminal The civil action reserved cannot
action
be instituted until the final
judgment is rendered in the
criminal action.
The civil action is filed before The pending civil action shall be
the criminal action.
suspended in whatever stage
until the final judgment in the
criminal action.
Take Note:
The acquittal in a criminal action does not bar the filing of the civil
case.
The extinction of the penal action does not carry with it the
extinction of the civil action, unless the extinction proceeds from a
declaration in a final judgment that the fact from which the civil
liability might arise did not exist.
Where the criminal case was dismissed before the trial because the
offended party executed an affidavit of desistance, the civil action
thereof is also dismissed.
GENERAL RULE: Primacy of the criminal action over the civil
action.
EXCEPTIONS:

Independent civil actions (Articles 32, 33, 34, and 2176, NCC);

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Civil action presents a prejudicial question;

Civil action is not one intended to enforce the civil liability arising
from the offense; and
Civil action is consolidated with the criminal action.
Take Note:
The consolidation must be in the criminal court,
irrespective of the nature of the offense and the
amount of the civil claim.
The evidence in the civil case is deemed
automatically reproduced in the criminal action
without prejudice to the admission of additional
evidence, and the right to cross-examination.
Consolidation is done through a motion.

KINDS OF ACQUITTAL
Based on reasonable doubt.
Did not commit the crime.
Purely civil.
Acts from which civil liability
arises from were not committed.

EFFECT ON CIVIL LIABILITY

Civil liability lies.
No more civil liability based on
delict.
Civil liability arises.
No civil liability.

The extinction of criminal liability = extinction of civil liability, IF

The accused is innocent;
The act or omission does not exist; or
The death of the accused.
The extinction of criminal liability extinction of civil liability, IF
Acquittal is based on reasonable doubt, if the civil case is reserved;
The liability of the accused is only civil;
The civil liability is not based on act which the accused is acquitted;
The statute declares that there is only civil liability;
Justifying circumstances; or
Exempting circumstances.
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY
(These are not suspended, even if filed before the criminal action, or is reserved.)

Article 32: Violation of rights;

Article 33: Defamation, fraud, and physical injuries;

Article 34: Failure to aid by police force; and

Article 2176: Quasi-delicts.

Take Note:
The recovery of civil liability here arising from the same act or omission
may be prosecuted separately, even without a reservation.
EFFECTS OF DEATH OF THE ACCUSED OR CONVICT ON THE CIVIL
ACTION
Before the arraignment.
The case shall be dismissed
without prejudice to any civil
action that the offended party
may file against the estate of the
accused.
After the arraignment, and The criminal liability and the civil
during the pendency of the liability arising from the delict
criminal action.
are extinguished, but:

Independent civil actions

continue;

Civil liability on other

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

sources subsists; and

Civil action reserved and
subsequently filed or such
civil action has been
instituted when accused
died.
The pecuniary liabilities of the
accused are not extinguished.

The accused or convict dies

after final appeal.

PREJUDICIAL QUESTION (PQ)

It arises in a case, the resolution of which is a logical antecedent of the issue
involved therein and the cognizance thereof pertains to another tribunal.
It suspends the criminal action.
Elements:

The civil action is instituted prior to the criminal action;

The civil action involves an issue similar or intimately related to the

issue raised in the subsequent criminal action; and

The resolution of such issue determines whether or not the criminal

action may proceed.
Time to plead:

By filing a motion in the Office of the Prosecutor during the preliminary

investigation, or in the court conducting the preliminary investigation; or
in the court before prosecution rests its case.
Take Note:
Civil and administrative = no PQ.
Both civil = no PQ.
Both criminal = no PQ.
Civil and criminal = there may be a PQ.

----- PRELIMINARY INVESTIGATION ----PRELIMINARY INVESTIGATION (PI)

It is an inquiry or proceeding to determine whether there exists sufficient
ground to engender a well-founded belief that a crime has been committed
and that the respondent is probably guilty thereof, and should be held for
trial.
It is merely inquisitorial.
The presence of the accused or the offended party = not mandatory.
Respondent is the proper term; not accused.
It is a personal right which can be waived, by:

Failure to claim it before the accused pleaded;

His silence; or

Failure to request it within 5 days.

GENERAL RULE: PI is required before the filing of a Complaint or
Information for an offense, the penalty thereof is at
least 4 years, 2 months, and 1 day, without regard to
fine.
EXCEPTION: No PI when a person is lawfully arrested without a warrant
(instead, there can be an inquest).
INSTANCES WHEN PRELIMINARY INVESTIGATION MAY BE ASKED BY
THE ACCUSED AFTER ARRESTED

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Take Note:
The absence of a PI does not affect the courts jurisdiction or
invalidate the Information, if no objection was raised by the
accused; if an objection was raised, the court should order the
fiscal to conduct a PI, instead of dismissing the Complaint or
Information.
REMEDIES OF ACCUSED IF NO PRELIMINARY INVESTIGATION
Refused to enter a plea upon arraignment, and object to further
proceedings;
Insist on a PI;
File a certiorari, if refused;
Raise the lack of PI as error on appeal; or
File for prohibition.
Take Note:
PI is not part of the trial. The dismissal of the case by the
Prosecutor will not constitute double jeopardy, and it will not bar the
filing of another complaint for the same offense. But if the case is
re-filed, the accused is entitled to another PI.
WHO MAY CONDUCT PRELIMINARY INVESTIGATION
Provincial/City prosecutors, and their assistants;
National and regional state prosecutors; and
Ombudsman, Special Prosecutor (if authorized by the Ombudsman),
COMELEC, PCGG.
Take Note:
The NBI cannot conduct a PI.
First level court judges cannot.
The jurisdiction of the prosecutors is based on territory.
Effects of an incomplete PI:

It will not warrant the quashal of the Information; and

It will not affect courts jurisdiction or the validity of the Information.

Take Note:
The complaint-affidavit must be subscribed before the prosecutor or
government official where the case will be filed.
- Do not file a notarized affidavit; instead, bring your client before the
prosecutors office, except:

There is no available prosecutor or government

official; or

Complainant is abroad.
PROCEDURE OF PRELIMINARY INVESTIGATION

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Take Note:
A Motion for Reconsideration can be filed with the Prosecutor.
There is no need for service of subpoena (and receipt thereof) for
the Office of the Prosecutor to obtain jurisdiction over the
respondent because no case yet.
RESOLUTION OF INVESTIGATION PROSECUTOR (IP)
If he finds cause to hold respondent for trial, he shall prepare the
resolution and Information.
Take Note:
No Complaint or Information may be filed or dismissed by an IP without
prior written authority or approval of the provincial/city Prosecutor or
Chief State Prosecutor, or of the Ombudsman.
Exclusion of others from the Information
does not relieve them from criminal liability; it is not a ground
for a Motion to Quash.
Information is filed by someone not authorized by law
the court does not acquire jurisdiction.
The determination of the Assistant Fiscal or State Prosecutor is
only recommendatory; their findings may be reversed or modified
by the provincial/city fiscal, in which case it is the latter who may
directly file the Information without need of another preliminary
investigation.
Posting of bail does not bar the accused from questioning the
conduct (or absence) of a preliminary investigation, or the legality of
the arrest.
WHEN WARRANT OF ARREST MAY BE ISSUED
PROBABLE CAUSE (PC)

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CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

It is a reasonable ground for belief in the existence of facts warranting the

proceedings complained of.
Take Note:
While the judge may rely on the fiscals certification, the same is not
conclusive upon the judge; the latter may require the submission of
affidavits of witnesses, or may require fiscal to conduct further
preliminary investigation or reinvestigation.

FOR THE ISSUANCE OF A

WARRANT OF ARREST
Judges of the RTC and inferior
courts need not personally
examine the complainant and
witnesses to determine probable
cause. Why? Because a
preliminary investigation has
been done prior.
PROCEDURE (REGIONAL TRIAL COURT)

PROCEDURE (MUNICIPAL TRIAL COURT)

FOR THE ISSUANCE OF A

SEARCH WARRANT
Judges
are
required
to
personally
examine
the
complainant and witnesses.
Why? Because no preliminary
investigation
has
been
previously conducted.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

DETERMINATION OF PROBABLE CAUSE

BY THE
It is done by the Prosecutor during the
PROSECUTOR
Preliminary Investigation.
(Executive
Take Note:
determination of
The court can compel the Prosecutor,
PC)
by Mandamus, to conduct a
Preliminary Investigation (because its
the Prosecutors ministerial duty); but,
the court cannot compel the
Prosecutor to determine Probable
Cause as it is discretionary upon him.
BY THE JUDGE
It is done by the Judge to ascertain whether
(Judicial
or not a Warrant of Arrest should be issued.
determination of
Take Note:
PC)
The Judge is not required to read the
entire records of the case to
determine Probable Cause.
When can you file a motion for the determination of probable
cause:
After the filing of the Information, and before the Judge has acted
on it.
Take Note:
It cannot be filed after the issuance of a Warrant of Arrest.
Warrant of arrest is not necessary:

The accused is already under detention;

The Complaint/Information is filed pursuant

warrantless arrest; or

The offense is penalized only by a fine.

to

lawful

Remedies of the accused if he believes that there is no probable

cause to hold him for trial:

Motion to Dismiss; or

Motion to Quash (if a Warrant of Arrest has already been issued).

MTC Judge may issue a Warrant of Arrest before the conclusion of
the Preliminary Investigation, if:

If he finds that probable cause exists; and

There is a necessity of placing the respondent under immediate

custody.
CASES NOT REQUIRING PRELIMINARY INVESTIGATION
If a Complaint is filed with the The Prosecutor will

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Prosecutor
If a Complaint/Information is
filed with the MTC/MCTC

determine PC and then file

the Information in court.
The Judge will determine
PC, and in its discretion
issue either a Warrant of
Arrest, OR Summons (if no
necessity of placing under
custody).

INQUEST
It is an informal and summary investigation conducted by a public prosecutor
in criminal cases involving persons arrested and detained without warrant of
arrest.
It is applicable only if:

There is warrantless arrest; or

The offense requires a PI.

Take Note:
You can file for bail during inquest.
Even if there is waiver under Rule 125, you can still apply for bail.

PROCEDURE FOR INQUEST

Take Note:
If warrantless arrest, but the offense does not require PI?
Information will be directly filed with the Prosecutor, or with the
MTC.
Records of PI shall not automatically form part of the records of the
case; it must be introduced as evidence. The courts are not
compelled to take judicial notice thereof.

----- ARREST ----ARREST

It is the taking of a person into custody in order that he may be bound to
answer for the commission of an offense.
Essential requisites for a valid Warrant of Arrest:

Issued upon PC, determined personally by a Judge;

After evaluation of prosecutors report and evidence adduced during

PI;

Warrant must particularly describe the person to be arrested; and

In connection with a specific offense or crime.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Who may issue?

Judges of all levels.
BID Commissioner may issue a Warrant of Arrest of an undesirable
alien sought to be deported.
Remedy for warrants improperly issued:
Petition to quash it; not a petition for habeas corpus.
Take Note:
The accused is not required to be handcuffed or be placed in jail in
order to be considered arrested.
Invitations are not arrest.
ARREST HOW MADE

Actual restraint; or

Voluntary submission.
Take Note:
Reasonable and necessary amount of force may be used.
Upon arrest, these may be confiscated:

Object subject of the offense or used or intended to be used;

Fruits of the crime;

May be used to commit violence or to escape;

Dangerous weapons; and

Objects, possession of which is illegal per se.

Arrest must precede the search; it cannot be reversed.
Reliable information alone is not sufficient to justify a warrantless
arrest.
Validity of a Search Warrant
10 days, after which it becomes void.
Validity of a Warrant of Arrest
No time limit for its validity.
When can you make an arrest?
Any day, any time of the day or night
ARREST WITHOUT WARRANT, WHEN LAWFUL
GENERAL RULE: No authority to arrest without a warrant.
EXCEPTIONS: Lawful warrantless arrests:

In flagrante delicto (e.g. buy-bust operation);

Doctrine of Hot Pursuit;

Evasion of service of sentence;

Escapes;

By bondsman for purpose of surrendering the accused; and

Accused attempts to leave the country without permission of

the court.
Take Note:
Flight per se is not synonymous with guilt.
Rules on illegality of arrest:

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

1.
2.
3.

Objection must be raised before arraignment; otherwise, it is

deemed waived.
Illegality of warrantless arrest may be cured by filing of an
Information in court and the subsequent issuance by the Judge of a
Warrant of Arrest.
Once already charged in court, the remedy is to quash the
Information, not habeas corpus.

METHODS OF ARREST
With a
Arrest may be made even if the police officer is not in
warrant
possession of the Warrant of Arrest. However, if the
person arrested so requires, the warrant shall be
shown to him as soon as possible.

Without
a warrant

By a
private
person

EXCEPTIONS:

Person to be arrested flees;

He forcibly resists before officer could do so; or

Giving of information will imperil the arrest.

Arresting officer must state his authority to arrest, and
the cause of his arrest.
EXCEPTIONS:

Engaged in the commission of the offense;

Pursuit immediately after its commission;

Escapes, flees, or forcibly resists before officer

could do so; or

Giving of information will imperil the arrest.

State the cause of the arrest, and the intention to
arrest.
EXCEPTIONS: (same as without a warrant)

----- BAIL ----Bail

It is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, conditioned upon his appearance before
any court as required under the conditions specified by the rule.
It is applicable whenever there is deprivation of liberty, or there is voluntary
surrender.
It is available to those detained persons but not yet formally charged.
It is available in extradition proceedings (proof required: clear and convincing
evidence).
Bail is wholly discretionary in deportation proceedings, since it is not a
criminal action.
Kinds of bail:

Corporate surety;

Property bond;

Cash deposit; and

Recognizance.
Take Note:
Persons under custody of Military Courts are not entitled to bail.
Prosecution witnesses may also be required to post bail to ensure their
appearance at the trial, where:

There is a substitution of Information, and

The court believes that a material witness may not appear at the trial.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Conditions of bail:
1. The undertaking shall remain in force at all time, until promulgation of
judgment of the RTC.
2. The accused shall appear in court when ordered to do so.
3. Failure to appear in court without justification = there is waiver; trial in
absentia will proceed.
4. Bondsman shall surrender the accused for execution of the final
judgment.
Take Note:
Requiring arraignment before grant of bail is not valid.
The trial court may impose other conditions in granting bail where
likelihood of jumping bail or of committing other harm is feared.
Filing of a fake bail bond = appellant is deemed to have escaped.
The accused who absconded after posting bail does not lose his right to
bail. The remedy of the court is to increase the amount of bail.

BEFORE CONVICTION
Bail as a
matter of
right
(The Judge
cannot deny
bail, but he
has
discretion on
the amount.)

MTC and RTC

EXCEPT, in offenses
punishable by reclusion
perpetua, life
imprisonment, or death
penalty, where evidence of
guilt is strong. (If not strong,
it is a matter of right)

Bail as a
matter of
discretion

AFTER
CONVICTION
MTC
RTC, provided:
imprisonment is less than
6 years, and no
disqualifiers:

Recidivist, habitual
delinquent,
reiteracion;

Previously escaped
from legal
confinement;

Committed offense
while under
probation/parole/pard
on;

Flight-risk; or

Undue risk that he

may commit another
crime during the
pendency of the
appeal.
RTC, provided: it is not a
capital offense, or is not
punishable by reclusion
perpetua, or life
imprisonment, and it is not
accompanied by any bail
disqualifiers if the penalty
exceeds 6 years.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Bail is not allowed in:

Capital offense, or offense punishable by reclusion perpetua, or life

imprisonment; and

The evidence of guilt is strong.

WHERE DO YOU APPLY FOR BAIL
RTC if appealed, and before the transmission of records to the
appellate court.
Appellate court if appealed, and the RTCs conviction changed the
nature of the offense from non-bailable to bailable.
WHERE TO APPLY
If arrested in the place where In the court where the case is
the case is pending
pending; or
If the Judge of said court is
absent or unavailable, with any
Judge in the
province/city/municipality.
If the arrest is in a place In the court where the case is
different from where the case if
pending; or
pending
In the RTC where the accused
was arrested; or
If no RTC Judge, with the MTC
Judge.
If there is a case pending, but Only where the case is pending.
no arrest yet (meaning, the
accused voluntary surrenders)

If there is an arrest, but no Any court where the accused is

case is pending (meaning,
held.
warrantless arrest)
Illustrations:
Arrested in Brgy. Bitano, Legazpi City, and the case was filed in
Legazpi City
= apply in court where the case is pending; if the Judge is not
available, apply in any court in the area.
Arrested in Legazpi City, but the case was pending in Daraga
= apply in Legazpi City, not in Daraga.
Wandering freely in Legazpi City, but the case is pending in Daraga
= you are not yet arrested so do not apply for bail;
= but if you decide to voluntarily surrender, do it in Daraga, and
post bail there.

Take Note:
If bail is filed in court other than where the case is pending, the Judge
who accepted the bail shall forward it together with the order of
release to the court where the case is pending. But the Judge may
order a new bail.
Warrant of Arrest without recommendation for bail is a violation of
constitutional right of accused to bail, except if charged with offenses
punishable by reclusion perpetua, or higher, and the evidence of guilt
is strong.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

CONVICTED
BY:
RTC
RTC

RULES
YEARS OF
BAIL
IMPRISONMEN
DISQUALIFIE
T
R

> 6 years
> 6 years
X

RTC

< 6 years

RTC

< 6 years

RESULT
Bail is denied
Bail is
discretionary
Bail is a matter
of right
Bail is
discretionary,
but the court
will impose a
higher amount
of bail

Take Note:
Although bail is discretionary, bail hearing is still mandatory.
In order to grant bail as a matter of discretion, there must be no final
judgment yet.
GENERAL RULE: Capital offenses (those punishable by reclusion
perpetua, life imprisonment, or death) are not
bailable when evidence of guilt is strong.
EXCEPTION: Accused is a minor.
GUIDELINES IN FIXING THE AMOUNT OF BAIL (not exclusive)

Financial ability;

Nature and circumstances of the offense;

Penalty;

Character and reputation of the accused;

Age and health of the accused;

Weight of evidence;

Probability of the accused appearing at the trial;

Forfeiture of other bail;

Accused is a fugitive when arrested; and

Pendency of other cases.

BAIL WHEN NOT REQUIRED

(Reduced bail on recognizance)

Violation of ordinance;

Light felony;

Penalty does not exceed 6 months, and/or fine of 2,000;

Youthful offender;

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

In custody for a period equal to or more than the possible maximum

imprisonment prescribed; and
Failure to appear.
Take Note:
Under the Rules on Summary Procedure, generally, there is no bail,
except, when a Warrant of Arrest is issued for failure to appear when
required by the court.

INCREASE OR REDUCTION OF BAIL

If increased but the accused does not give bail = he may be committed
into custody.
FORFEITURE AND CANCELLATION OF BAIL
Forfeiture
- When the accused fails to appear.
Remedy: Motion for Reconsideration to reinstate the
bail.
Within 30 days from failure to appear, the bondsman
must:

produce the accused or give reason for nonproduction; and

explain why accused did not appear.

Cancellation

Take Note:
If bondsman fails to do the above, an order of
confiscation shall be rendered against him.
- It is automatic when:

Accused is acquitted;

Dismissal of the case; or

Execution of judgment of conviction.

- Or upon application of bondsman when:

Surrender of accused; or

Proof of his death.

APPLICATION FOR OR ADMISSION TO BAIL SHALL NOT BAR THE

ACCUSED FROM CHALLENGING:
Validity of his arrest;
Legality of the Warrant of Arrest; or
Regularity, or questioning the absence of preliminary investigation.
They must be raised before entering plea (arraignment).
Take Note:
A Motion to Quash the amended Information can be filed during the
pendency of a petition for bail.
HOLD DEPARTURE ORDER (HDO)
It can be issued only by the RTC in criminal cases.
MTC Judges have no authority to issue, or to cancel the HDO.

----- RIGHTS OF THE ACCUSED ----Rights of the accused during trial

1. To be presumed innocent.
2. To be informed of the nature and the cause of the accusation against him.
GENERAL RULE: The accused cannot be convicted of an
offense, unless the offense is

3.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

clearly
charged
in
the
Complaint/Information.
EXCEPTION: The accused fails to object to its sufficiency
during trial and the deficiency was
cured by
competent evidence
presented; a waiver of his
constitutional right.
To be present and defend in person and by counsel at every stage of the
proceeding.
GENERAL RULE: The presence of the accused during
criminal action is not required and
shall be
based on his sole discretion.
EXCEPTIONS:

During arraignment;

During promulgation of sentence, except for light

offenses; and

If ordered by the court for purposes of identification.

Take Note:
Private complainant does not need to be present
always. He is only required to be present during
arraignment.
Effects of waiver by the accused of his right to appear:

Waiver of the right to present evidence and to crossexamine the witnesses;

The prosecution can present evidence if the accused

fails to appear; and

The court can decide the case without the accuseds

evidence.
Trial in Absentia
Absence of the accused = waiver of his right to meet the
witnesses face to face, but
not a waiver of his
duty to
the court.
Requirements for trial in absentia:

The accused has been arraigned;

He has been duly notified of the trial; and

His failure to appear is unjustified.

Right to Counsel
This right is absolute and may be invoked at all times,
even on appeal.
But the right to counsel de parte is not absolute.
RIGHT TO COUNSEL
DURING
DURING TRIAL
ARRAIGNMENT
It is the courts duty to It is the accused who
inform the accused of must assert his right to
his right to counsel, and counsel.
Mandatory only during arraignment.
to provide him if he
cannot afford.
DURING CUSTODIAL
DURING TRIAL
INVESTIGATION
What is required is a
What is required is an
competent and
effective counsel.
independent counsel,
preferably the choice of
the accused.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Take Note:
These are not
independent
counsel:

Legal officer of
the city;

Public/private
prosecutor;

Counsel for the

police; and

Municipal
Attorney.
Take Note:
Confessions made without the assistance of a
counsel are not admissible, but they may be used
to impeach the credibility of the accused.
Retrial of the case can be ordered on the ground of
denial of the constitutional right to counsel.
The offended party cannot waive the assistance of
a counsel.

4.

5.

6.

GENERAL RULE: The negligence of the counsel binds

the accused.
EXCEPTION: Gross negligence of the counsel.
To testify as witness in his own behalf.
This is a waivable right.
The silence of the accused will not prejudice him.
The accused can testify for the prosecution if he wants, but he
cannot be compelled to do so.
AMERICAN RULE
ENGLISH RULE
The accused may be cross- The accused may be crossexamined only on matters examined as to any matter.
covered
by
his
direct
examination.
To be exempt from being compelled to be a witness against himself (Right
against Self-Incrimination).
This only applies to testimonial compulsion.
This right may be waived by failure to invoke after an incriminating
question is asked and before his answer.
ORDINARY WITNESS
ACCUSED
He may be compelled to take He may altogether refuse to
the witness stand and claim take the witness stand and
the privilege as each question refuse to answer any and all
requiring an incriminating questions.
answer is asked.
Take Note:
If the accused testifies in his own behalf, he may be crossexamined.
Furnishing of specimen of signature is covered by this right.
This right is available in:

Criminal proceedings;

Civil proceedings;

Administrative proceedings, where a penal sanction is

involved; and

Government proceedings.
To confront and cross-examine the witnesses against him at trial.
This right may be waived.

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8.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

To have compulsory process (subpoena ad testificandum, and subpoena

duces tecum).
This right may be waived.
If a witness refuses to testify when required, he can be cited in
contempt of court. The court may order a witness to give bail, or to
be arrested.
Other processes to compel the attendance of a person:

Warrant of Arrest;

Contempt;

Perpetuation of testimony; and

Modes of discovery.
For witness for the accused:

Sick/infirm/unavailable; or

Lives more than 100 km. from the court.

For witness for the prosecution:

Sick/infirm/unavailable; or

Witness is about to depart.

To have a speedy, impartial, and public trial.
This right cannot be waived.
There is no violation of this right if the delay if imputable to the
accused.
Right to a speedy trial
It can be invoked at any time
(criminal)
before trial.
Speedy disposition of the
case
(quasijudicial/administrative)

Remedy: Motion to Dismiss.

It can be invoked at any time
as long as the action is
pending.
Remedy: Habeas Corpus.

Relevant periods:

Arrest to pre-trial and arraignment: 30 days

Arraignment to trial:
80 days

Entire period of trial:

180 days
Take Note:
Dismissal for violation of accuseds right to a speedy trial is
equivalent to an acquittal. An attempt to prosecute for the
same offense is equal to double jeopardy.
Excluded from the determination of delay:

Mental/Physical examination of the accused;

Other criminal charges;

Extraordinary remedies against interlocutory orders;

Pre-trial proceedings, not exceeding 30 days;

Orders of inhibition or change/transfer of venue;

Any period not exceeding 30 days when the accused is

actually under advisement;

Absence of witness;

Mental incompetence/physical inability of the accused to

stand trial;

Co-accused over whom the court has no jurisdiction or

for whom the time for trial has not run and no motion for
a separate trial is granted;

The prosecution dismissed the Information upon motion

and then filed another charge for the same case; and

Continuance granted by the court motu proprio, or on

motion of either the accused or the prosecution.

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CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Right to public trial:

GENERAL RULE: Trial should be public.
EXCEPTION: When evidence to be produced is offensive to
decency or public morals.
To appeal on all cases allowed by law and in the manner prescribed by
law.
This right may be waived.
The right to appeal is not a natural right.

----- ARRAIGNMENT AND PLEA ----ARRAIGNMENT AND PLEA, HOW MADE

ARRAIGNMENT
It is the formal mode of implementing the constitutional right of the
accused to be informed of the nature of the accusation against him.
Where: In the court where the Complaint/Information was filed, or
assigned for trial.
How:

Read by the Judge or clerk;

In a language/dialect known to the accused; and

Accused must be asked whether he pleads guilty or not (meaning,

arraignment first before plea).
When:

Accused is not under preventive suspension:

30 days from the date the court acquires jurisdiction over the
person of the accused (meaning, from the filing of the
Information).
Take Note:
The time of the pendency of a Motion to Quash, or of a
Bill of Particular, or of other causes justifying
suspension, is not counted.

Accused is under preventive suspension:

Take Note:
Arraignment cannot be waived.
The accused must be present and must personally enter his plea.
The offended party must also be present. If he does not appear, the
accused can plea to a lesser offense with the conformity of the
prosecution.
PLEA OF NOT GUILTY IS ENTERED
1. If the accused so pleaded;
2. If the accused refuses to plea;
3. If the accused enters a guilty plea but offers exculpatory evidence;
4. If the accused makes a conditional plea; and
5. If the plea entered is indefinite or ambiguous.
GENERAL RULE: Unconditional plea of guilt admits the crime.
EXCEPTIONS:

Compelled by violence or intimidation;

Accused did not fully understand the meaning and consequences

of his plea;

The Information is insufficient to sustain conviction;

The Information does not charge any offense; and

The court has no jurisdiction.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Take Note:
When there is a defect in the Information, the Judge has no obligation
to point out the defect. The obligation to file a Motion to Quash
belongs to the accused, whose failure to do so constitutes a waiver.
A mere written manifestation is not a valid plea.
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE
1. There is consent of the offended party;
2. The prosecutor also consented to the plea of guilty; and
3. The plea is to a lesser offense which is necessarily included in the offense
charged.
If the accused entered a
plea to a lesser offense
without the consent of the
offended party and the
prosecutor, and he was
convicted
After
arraignment
but
before trial

The accuseds subsequent conviction of

the crime charged would not place him
in double jeopardy.

The accused may still be allowed to

plead to a lesser offense after
withdrawing his plea of not guilty. No
amendment
of
the
Complaint/Information is necessary.

Take Note:
A plea of guilty to a lesser offense
after prosecution rests, is allowed
only when the prosecution does not
have sufficient evidence to establish
guilt for the crime charged.
During trial, a plea of guilty to a lesser offense is no longer allowed.
ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE; WHAT THE COURT
SHOULD DO
1. Conduct a searching inquiry into the
Voluntariness of the plea; and
Full comprehension of the consequences of his plea.
2. Require the prosecution to prove his guilt; and
3. Ask the accused if he desires to present evidence and allow him to do so
if he desires; but proof of self-defense to exonerate him is not allowed.
SEARCHING INQUIRY

IMPROVIDENT PLEA

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CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

It refers to a plea of guilty without fully understanding its consequences.

Effects:

Conviction will be set aside if plea of guilty is the sole basis of the
judgment.

If not, the court may validly convict based on independent adequate

evidence.
Can an improvident plea be withdrawn? YES!
When:
At any time before judgment of conviction becomes final
and executory.
Effect of withdrawal:
The judgment of conviction is set aside, and there is reopening for new trial.
Take Note:
Withdrawal of a plea of guilty is not a matter of right to the
accused but of sound discretion to the trial court.

BILL OF PARTICULARS
It is filed before arraignment.
GROUNDS FOR SUSPENSION OF ARRAIGNMENT

The accused suffering from unsound mental condition;

Prejudicial question exists;

A Petition for Review is pending with the DOJ or with the Office of the
President; and
It should not exceed 60 days from filing.

There are pending incidents, like:

Motion to Quash;
Motion for Inhibition;
Bill of Particulars.

----- MOTION TO QUASH ----Motion to Quash (MTQ)

It is filed by the defendant before entering his plea, which hypothetically
admits the truth of the facts in the Complaint/Information at the same time
that it sets up a matter which, if duly proved, would preclude further
proceedings.
It must be in writing.
GENERAL RULE: MTQ is filed before entering plea.
EXCEPTIONS: (meaning, MTQ may be filed after plea)

Failure to charge an offense;

Lack of jurisdiction over the offense charged;

Extinction of offense or penalty; or

Defendant would be placed in double jeopardy.

Take Note:
MTQ only belongs to the accused.
MTQ is not a responsive pleading.
What is quashed is the Information, not the Complaint-Affidavit.
Filing a MTQ results in the submission of the accused to the
jurisdiction of the court.
MOTION TO QUASH
It is filed before defendant enters
his plea.
It does not go into the merits of

DEMURRER TO EVIDENCE
It is filed after prosecution rested
its case.
It is based on inadequacy of

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

the case.
Rule 117

evidence by the prosecution.

Rule 119

GROUNDS FOR MOTION TO QUASH

1. The facts charged do not constitute an offense.
Why? Because the elements of the offense are not alleged.
Matters aliunde are not considered.
If the facts alleged constitute a different crime
No MTQ; instead, the court will order an amendment.
If amendment is not followed, then, the court will grant
MTQ.
Is there double jeopardy? None, because there
is no arraignment yet.
2. More than one offense was charged in the Information.
GENERAL RULE: 1 offense = 1 Information
EXCEPTION: Complex crimes
3. It does not conform substantially to prescribed form.
4. The officer who filed the Information had no authority to do so.
It cannot be cured by silence, acquiescence, or consent.
5. Lack of jurisdiction over the person of the accused.
Either because the accused is not yet arrested, or has not yet
voluntarily surrendered.
6. Lack of jurisdiction over the offense charged.
The court can consider even without alleging in the MTQ.
7. The criminal action or liability is extinguished (Article 89, RPC).
8. It contains averments, which if true, would constitute a legal excuse or
justification, such as:
Justifying circumstances;
Exempting circumstance; and
Absolutory causes.
9. The accused has been previously convicted or acquitted of an offense
charged, or the case against him was dismissed without his express
consent.
10. Double jeopardy.
Requisites:

Complaint or Information;

Valid plea entered;

Final judgment, or dismissal; and

Subsequent Complaint or Information is filed for:

- Same offense; or
- Attempt to commit the same; or
- Frustration of said offense; or
- Offense which necessarily includes the first offense; or
- Offense which is necessarily included in the first offense.
Requisites to raise double jeopardy:
1. First jeopardy must have attached;
2. First jeopardy must have been terminated;
3. Second jeopardy must be for the same offense or the
second offense includes or is necessarily included in the
offense charged in the first Information or is an attempt or
frustration thereof.
Take Note:
There is no double jeopardy when:

Supervening event;

The facts constituting graver charge are only

discovered after a plea was entered; or

The plea of guilty to a lesser offense was made

without the consent of the prosecutor and the

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

offended party, except when the offended party

did not appear during the arraignment.
-

GENERAL RULE: Dismissal must be without the express consent

of the accused.
EXCEPTIONS:
Even if there is express consent of the accused, still, they are tantamount to dismissal or acquittal.

There is violation of right to a speedy trial; or

Demurrer to evidence
Take Note:
The discharge of the defendant on a preliminary investigation
is not an adjudication in his favor as will bar subsequent
prosecution for the offense; preliminary investigation is not part
of the trial.

EFFECTS OF SUSTAINING A MOTION TO QUASH

GENERAL RULE: It results to dismissal.
EXCEPTIONS:
If based on alleged defect The court will order amendment.
which can be cured by
amendment.
If based on ground that the The court will allow amendment;
facts
charged
do
not if the prosecution fails to amend,
constitute an offense.
then, it will result to the
dismissal.
Can there be a re-filing of the Information?
GENERAL RULE: Yes.
The accused will not be discharged, unless admitted
to bail.
But, if still no new Complaint/Information is
filed within the specific period ordered by the
court, the accused can be discharged.
EXCEPTIONS:

Prescription; or

Double jeopardy.
EFFECTS OF SUSTAINING OR DENYING MOTION TO QUASH

PROVISIONAL DISMISSAL
Requisites:
1. There is express consent of the accused;
2. Notice to the offended party; and
3. The court granted the motion.
Effects of provisional dismissal:
The case is temporarily dismissed. It can later on be revived (not
refiled).
GENERAL RULE: Double jeopardy cannot be invoked.
EXCEPTION: Dismissal was actually an acquittal based on:

Lack or insufficiency of evidence; or

Denial of right to a speeding trial.

There is no form required for a provisional dismissal.

A
-

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Who can ask for a provisional dismissal?

The prosecution
It must be with the consent of the accused (so that there
will be no double jeopardy)
If there is no consent, the hearing will be reset
If there is no consent, and it was dismissed,
double jeopardy will already set in.

The accused
There is no need for the consent of the prosecution.
When can you ask for a provisional dismissal?
At any time while the case is pending.
What are sample grounds for provisional dismissal?

The witness is not available for quite some time;

The victim became insane; or

There is lack of material evidence.

Why move for a provisional dismissal instead for a continuance?
So that you will not get trapped by the accused saying that his
right to a speedy trial has been violated.
Asking for multiple continuances and rests may piss the Judge.
HOW CAN PROVISIONAL DISMISSAL BECOME PERMANENT
The offense is punishable by 1 year after the issuance of the
imprisonment not exceeding order
6 years
The offense is punishable by 2 years after the issuance of the
imprisonment beyond 6 years
order
Take Note:
In provisional dismissal, there is no need for a new preliminary
investigation, EXCEPT if the witness:

Recanted;

Died; or

A new one emerged.

MOTION TO QUASH
PROVISIONAL DISMISSAL
It is filed by the accused.
It is filed by the accused, or by
the prosecutor.
A form is required.
No form is required.
It assails the Information.
It is grounded on reasons other
than the defects in the
Information.
It is available before plea.
It is available at any time.

Court action

Re-filing

MOTION TO DISMISS
(CIVIL)
Either to grant, deny, or
order amendment.

Yes.

MOTION TO QUASH
(CRIMINAL)
Either to grant, deny, or
order amendment.
Limited grounds:
-Defects that can be
cured,
or
facts
charged
do
not
constitute
an
offense.
Yes.

EXCEPT:
EXCEPT:
- Prescription;
-Prescription; and
- Res judicata;
-Double jeopardy.
- Unenforceable under the
Statute of Fraud; and
- Extinguished claim or

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Objections
not raised

demand.
Waived.

Waived.

EXCEPT:
- Prescription;
- Res judicata;
- Litis pendentia; and
- Lack of jurisdiction over
the subject matter.

EXCEPT:
-Prescription;
-Double jeopardy;
-Lack of jurisdiction over
the offense; and
-Facts do not constitute
an offense.

----- PRE-TRIAL ----Pre-trial

This is mandatory in criminal cases (MTC, MCTC, MeTC, RTC, &
Sandiganbayan).
When should it occur?
30 days from the date the court acquires jurisdiction over the
person of the accused, and after arraignment.
PRE-TRIAL IN CIVIL CASE
The presence of the defendant
is
required,
unless
duly
represented by his counsel;
otherwise, the case shall
proceed as if the defendant is in
default.

The presence of the plaintiff is

required,
unless
excused;
otherwise, the case may be
dismissed with or without
prejudice.
Pre-trial brief is required.
Pre-trial is mandatory.

PRE-TRIAL IN CRIMINAL
CASE
The presence of the accused is
not
indispensable,
unless
required by the court.
The accused may waive
his presence at all
stages,
except
at
arraignment,
promulgation, or when
required to appear for
identification.
The
presence
of
private
offended party is not required,
except during arraignment.
Pre-trial brief is not required; but
it requires attendance at pre-trial
conference.
Pre-trial is mandatory.

GENERAL RULE: No compromise in a criminal action (offer of

compromise is a sign of criminal liability).
EXCEPTION: Compromise is allowed as regards the civil aspect.
MATTERS TO BE CONSIDERED DURING PRE-TRIAL

Plea bargaining;

Stipulation of facts;

Marking for identification of evidence;

Waiver of objections to admissibility of evidence;

Modification of the order of trial if accused admits the charge but

interposes a lawful defense (reverse trial); and

Other matters that will promote a fair and expeditious trial of the civil and
criminal aspects of the case.
PRE-TRIAL AGREEMENT
It must be in writing;
Signed by both accused and his counsel; and
Subject to approval of the court.

These are not required in civil cases.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Take Note:
Omission of signature of the accused and his counsel renders the
stipulation of facts inadmissible in evidence.
NON-APPEARANCE DURING PRE-TRIAL
Offended party, or the witness The court can either reset the
is absent.
pre-trial, or rely on compulsory
processes.
Counsel if absent.
The court may impose sanctions
or penalties.
Accused is absent.
Forfeiture of bail, and/or warrant
of arrest.
PRE-TRIAL ORDER
It is issued after pre-trial, reciting actions taken, facts stipulated, and
evidence marked.
Purposes:

Binds the parties to issues raised therein.

Limits the trial to matters not disposed of.

Controls the course of the action during trial.

----- TRIAL ----Trial should not exceed 180 days from the first day of trial, except as otherwise
provided by the Supreme Court.
REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF
ABSENCE OF WITNESS
1. Witness is material;
2. Party who applies is not negligent;
3. Witnesses can be had at the time to which the trial is deferred and
incidentally that no similar evidence could be obtained; and
4. An affidavit showing the existence of the above circumstances must be
filed.
TRIAL IN ABSENTIA
Absence of the accused = waiver of his right to meet the witnesses face to
face, but not a waiver of his duty to the court.
Requirements for trial in absentia:

The accused has been arraigned;

He has been duly notified of the trial; and

His failure to appear is unjustified.

REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD
Motion to Dismiss (due to denial of right to a speedy trial)
Failure of the accused to move for the dismissal prior to the trial =
waiver of his right to dismiss.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE

WITNESS
1. There is no direct evidence;
2. Absolute necessity for the evidence;
3. Testimony could be substantially corroborated in material points;
4. Accused does not appear to be the most guilty; and
5. Accused is not convicted of a crime involving moral turpitude.
When to apply?
Before the prosecution rests its case.
What does the applicant needs to submit?
A sworn affidavit.
EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS

Evidence adduced in support of the charge shall automatically form part of

the trial; and

It operates as an acquittal and bar to further prosecution for the same

offense.
Take Note:
If the court denies the motion to discharge the accused as state
witness, his sworn statement shall be inadmissible in evidence.
ORDER OF TRIAL
1. Prosecution;
2. Defense;
3. Rebuttal;
4. Surrebuttal; and
5. Submission of memoranda.
Take Note:
The order can be reversed when self-defense or other exculpatory
defenses are raised.
DEMURRER TO EVIDENCE (DTE)
This is a motion to dismiss due to insufficiency of evidence presented by
the prosecution.

When to file
Leave
of
court (LoC)

Effect

of

DTE IN CRIMINAL
CASE
After the prosecution
rests.
It is not really needed,
but:

If you file with LoC,

and it is denied,
accused
can
still
present
evidence.

If no LoC, and it is
denied
accused will not
be
able
to
present
evidence;
judgment shall
be rendered.
Acquittal, but the civil

DTE IN CIVIL CASE

After the plaintiff has
completed
presenting
his evidence.
No need for LoC.

Final disposition of the

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

grant
LoC

of

aspect should still be

heard, unless the court
rules that the fact from
which the civil liability
would arise does not
exist.

case.

Take Note:
The court can move for a demurrer on its own, as long as it gives
the prosecution a chance to be heard.

Take Note:
If criminal demurrer is denied, is there a remedy? None. Why?
Because it is an interlocutory order, which is not reviewable by
appeal, or by certiorari, before judgment. Just wait for the judgment,
then if there is GADALEJ, file Certiorari under Rule 65.

----- JUDGMENT ----REQUISITES OF A JUDGMENT

1. In writing;
2. In the official language;
3. Personally and directly prepared and signed by the Judge; and
4. With a concise statement of the fact and signed by the Judge.
Take Note:
There can be no oral judgment.
Remedy if the judgment is not put into writing = file a Petition for
Mandamus to compel the Judge to put it in writing.
It is not necessary that the Judge who tried the case be the same
judicial officer to decide it. It is sufficient if he be apprised of evidence
already presented.
CONTENTS OF THE JUDGMENT
If
for 1. The offense;
conviction
2. Participation of the accused;
3. Penalty imposed; and
4. Aggravating/mitigating circumstances.
If for acquittal
1. Whether there is complete non-liability;
2. Reasonable doubt; and
3. Facts from which civil liability might arise
were not committed.
Take Note:
The judgment of acquittal is considered a final and executory order.
There is no more remedy for it.
PROMULGATION OF JUDGMENT
In civil cases
= Judgment is served.
In criminal cases
= Judgment is promulgated.
Presence of counsel =
Presence of accused =

Not necessary.
Required, except for light offenses.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Take Note:
If the accused is absent without justifiable case, he loses the
remedies available in the Rules, and he shall be arrested; but, he
can explain within 15 days.
The Judge is not required to promulgate the judgment personally.
Who may promulgate the judgment?
The Judge of the court in which it was rendered;
The clerk of said court, in the absence of the Judge;
or
The executive Judge of the RTC having the
jurisdiction over the place of confinement or detention.

Take Note:
The appellate courts can do promulgation.
Notice of promulgation should be served to the accused personally
(as much as possible).
EXCEPTIONS:

If in jail
= to the warden.

If out on bail = to the bondsman.

If at large
= to his last known address.

Promulgation in absentia (without the presence of the accused):

1. Judgment is for a light offense; and
2. Where despite notice, accused failed to appear.
WHEN JUDGMENT BECOMES FINAL

No appeal is filed;

Waiver of the right to appeal;

Probation; or

Service of sentence.

----- NEW TRIAL OR RECONSIDERATION ----New Trial or Reconsideration

The accused can file a Motion for New Trial, or a Motion for
Reconsideration at any time before judgment of conviction becomes final
(meaning: 15 days (Neypes Rule is applicable)
The prosecution cannot file a Motion for New Trial, or a Motion for
Reconsideration.
GROUNDS FOR NEW TRIAL
1. Errors of law or irregularities prejudicing the substantive rights of the
accused during trial; or
2. Newly discovered evidence.
Requisites:
a. It is material;
b. It could not have been discovered and produced with
reasonable diligence; and
c. Would probably change the judgment.
Take Note:
If a Motion for New Trial is granted, the court should commence a new
trial within 30 days from notice of such order.
the thirty-day period is extendable up to 180 days from notice.
A Motion for New Trial can be filed in the Court of Appeals, but only
based on newly discovered evidence.
When? At any time from the perfection of the appeal, until the
court loses jurisdiction.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

GROUNDS FOR MOTION FOR RECONSIDERATION

1. Errors of law; or
2. Errors of fact in the judgment.
Take Note:
The grant of the court of the reconsideration should require no hearing
(such as taking of additional proof).
A Motion for Reconsideration can be filed in the Court of Appeals; but
just once.
EFFECTS OF GRANTING THE NEW TRIAL OR RECONSIDERATION
If a New Trial is
Everything will be set aside and taken
granted on the
anew; but, those not affected shall stand
ground of errors of
(meaning: not all evidence previously
law,
or
adduced shall stand).
irregularities
during trial.
If a New Trial is
Evidence already taken shall stand, and
granted on the
newly discovered evidence will be
ground of newly
considered
(meaning:
all
evidence
discovered
previously adduced shall stand).
evidence.
In
all
cases
Original judgment shall be set aside or
(granting of New
vacated and a new judgment rendered
Trial,
or
accordingly.
Reconsideration)
Take Note:
The effect of granting a New Trial is not to acquit the accused, in
which he is guilty, but to set aside the judgment so that the case
may be tried de novo as if no trial had been before.
An order granting or denying a New Trial is appealable.

----- APPEAL ----Appeal

There is no record of appeal in criminal cases; it is only applicable in civil
cases.
Only notice of appeal is allowed in criminal cases.
Who may appeal?

Accused;

Offended party (but only as regards the civil aspect); or

People of the Philippines.

Example:
When a Motion to Quash was granted, the State can appeal
since no double jeopardy yet (a Motion to Quash is
filed before
arraignment).
EFFECT OF AN APPEAL
CIVIL
=
CRIMINAL

the court will only consider the assignment of

errors.
the entire case is open for review
(penalty can be increased on appeal).

WHERE TO APPEAL
MTC/MeTC/

Court where to
appeal
to the RTC

Requirement
via Notice of Appeal filed

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

MCTC

in the MTC/MeTC/MCTC.
(In civil cases, record of
appeal).

RTC

if acting originally, to
the CA

Take Note:
There is no hearing in
the RTC since acting
in
its
appellate
jurisdiction.
via Notice of Appeal filed
in the RTC (R.41)

Same
is
penalty
imposed by the RTC
is reclusion perpetua
or life imprisonment.

If the penalty is
death, straight to CA
(but no need for
notice of appeal).
(In civil cases, record of
appeal).
Procedure:

Appellants brief
within 30 days

Appellees brief
within 30 days

Reply brief within

20 days

if acting as an
appellate court, to the
CA
directly to the SC
CA

to the SC

(In civil cases, 45-45-20

days).
via Petition for Review
(R.42)
if
based
purely
on
questions of law (R.45)
Neypes Rule applies
via Petition for Review on
Certiorari (R.45) Neypes
Rule applies
Except:

CA decides penalty is
reclusion perpetua, or
life imprisonment, the
remedy is by notice of
appeal with the CA.

CA decided death, it
will render but not
enter a judgment and
certify the case to the
SC.
automatic review
by the CA (it
would
minimize
the possibility of
an
error
of

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Sandiganb
ayan
decides
(same level
as CA)

to the SC

judgment).
if penalty is less than
death,
life
imprisonment,
or
reclusion perpetua
Petition
for
Review
on
Certiorari
(R.45).
if penalty is death
automatic
review.
if
penalty
is
life
imprisonment,
or
reclusion perpetua
Notice
of
Appeal.

Take Note:
When the decision is raised to the SC on Notice of Appeal
(reclusion perpetua, or life imprisonment), both questions on facts
and law can be raised.
R.41, Sec.1 (when appeal is prohibited) does not apply to criminal
appeals.
Thus, you can appeal a MTQ, regardless of the ground
availed of.
Even if the ground can lead to a simple re-filing, appeal is
still available.
If accused uses the wrong mode for appeal, the judgment will
become final and executory because the running of the appeal
period will not be tolled.
Except: If the interest of justice would allow.
When appeal to be taken?
15 days from promulgation of judgment, or from notice of the final
order appealed from.
It is interrupted from MNT/MR is filed, until the notice of
the order overruling it has been served upon the
accused or upon his counsel.
The balance of the period begins to run.
Effect of perfection of appeal
The court a quo loses jurisdiction over the case, both over the
record and over the subject of the case.
Take Note:
The fresh 15-day period to appeal from the dismissal of a Motion
for New Trial, or Motion for Reconsideration to the RTC is counted
from the receipt of the order dismissing the MNT/MR. (NEYPES
RULE). It applies to both criminal and civil cases.
Modes of Review:

Ordinary appeal;

Petition for Review;

Petition for Review on Certiorari; and

Automatic appeal.
EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
Only one or
It does not affect those who did not appeal,

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

several of them
unless favorable and applicable to them.
(but not all)
appeal
Appeal
by
It does not affect the criminal aspect.
offended party
of
the
civil
aspect
Upon
The execution shall be stayed, but only as to
perfection
of
the appealing party.
appeal
Example:
A,B, C were all convicted for Homicide.
A and B appealed using the correct mode.
C appealed but used the wrong mode.
Cs case was dismissed.
A and B were acquitted on appeal.
Result: C will not benefit because he appealed; if not, it would
have benefited him.
GROUNDS FOR DISMISSAL OF APPEAL

Failure of appellant to file a brief within the reglementary period, except

when he is represented by a counsel de officio;

Escape of appellant from prison or confinement;

Appellant jumps bail; and

Flight of appellant to a foreign country during the pendency of appeal.

----- SEARCH AND SEIZURE ----WARRANT OF ARREST

It is an order directed to the peace
officer to execute the warrant by
taking the person stated therein into
custody that he may be bound to
answer for the commission of the
offense.
It does not become stale.
It may be served on any day and at
any time of the day or night.
Searching examination of witnesses
is not necessary.

SEARCH WARRANT
It is an order in writing in the name of
the Republic of the Philippines
signed by the judge and directed to
the peace officer to search personal
property described therein and to
bring it to the court.
It is valid only for 10 days.
It is to be served only in day time,
unless the affidavit alleges that the
property is on the person or in the
place to be searched.
It is a must to personally conduct an
examination of the complainant and
the witnesses.

NATURE OF SEARCH WARRANT

It is in the nature of criminal process akin to a writ of discovery and may

be invoked only in furtherance of public prosecutions.

It has no relation to civil process or trials.

It is not available to individuals in the course of civil proceedings.

It is not for the maintenance of any mere private right.

It is interlocutory in character it leaves more to be done, which is the

determination of the guilt of the accused.
WHERE TO APPLY FOR SEARCH WARRANT
GENERAL RULE: In the court within whose territorial jurisdiction the
crime was committed.
EXCEPTIONS:

For compelling reasons, any court within the judicial region the
offense was committed, or where the warrant is to be served.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Or in any court where the warrant will be enforced.

Take Note:
If the criminal action had already been filed, apply only in
that court where the case is pending.

GENERAL RULE: A search warrant cannot be applied for in QC or in

Manila and be implemented outside of its
territorial
jurisdiction.
EXCEPTIONS:

R.A. 9165;
Apply a search

Intellectual Property Code;

warrant before an
executive judge in

Illegal possession of firearms;

Manila/QC; then, it

Illegal gambling;
will be effective

Heinous crimes;
anywhere

AMLA; and

Violation of Tariff and Customs Code.

Take Note:
The application for a search warrant is not a criminal action; it is
a special judicial process.
PERSONAL PROPERTY TO BE SEIZED BY VIRTUE OF A WARRANT

Subject of the offense;

Stolen or embezzled or fruits of the offense; and/or

Used or intended to be used for committing the offense.

Take Note:
It is not required that the property to be seized should be owned by
the person against whom the search warrant is directed; it is
sufficient that he has control or possession of it.
The search warrant does not have to specify the quantity of drugs.
REQUISITES FOR ISSUANCE OF A SEARCH WARRANT
1. It must be issued upon probable cause.
Probable Cause facts and circumstances which could lead a
reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection
with the offense is in the place sought to be searched.
Who determines probable cause? It is personally determined by
the Judge (not by the prosecutor).
Exception:
Deportation of illegal and undesirable aliens, whom the
President/Commissioner of Immigration may order be arrested,
following a final order of deportation for the purpose of
deportation.
2. The place to be searched must be described with particularity.
3. The things or persons to be seized must also be described with
particularity.
Take Note:
1 Search Warrant = 1 specific offense.
If the search warrant is already implemented
the thing seized must only be confined to those described
therein.
If the search warrant is not yet implemented
illegal in plain view can be seized.
EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES

Search incidental to lawful arrest;

the arrest must come before, or contemporaneous with the search
and seizure.
Consented search;
Search of moving vehicle;
Check points; body checks in airport;
Plain view situation;
Stop and frisk situation; and
Enforcement of custom laws.
Remedies from unlawful search and seizure:

MTQ (before the implementation of the search warrant);

Motion to Suppress Evidence (as to the objects illegally taken

Exclusionary Rule); and
after the implementation of the search warrant and before
the presentation in court.

Replevin (if the objects are illegally possessed).

WHERE IS PROBABLE CAUSE NEEDED

Preliminary investigation;

Warrantless arrest (crime just been committed);

Warrant of Arrest; and

Search and seizures.

----- PROVISIONAL REMEDIES ----NATURE OF PROVISIONAL REMEDIES

Those to which parties litigant may resort for the preservation or

protection of their rights or interests and for no other purposes during the
pendency of the action;

They are applied to a pending litigation for securing the judgment or

preserving the status quo, and in some cases after the judgment for
preserving or disposing of the subject matter.
GENERAL RULE: Provisional remedies in civil procedure are applicable
to criminal procedure.
EXCEPTION: Replevin (it can only be filed before an Answer; there is no
answer in criminal procedure).
GROUNDS FOR ATTACHMENT

Accused is about to abscond;

Accused concealed, removed, or disposed of his property (or is about to

do so);

Claim for money or property that has been embezzled with abuse of trust
(Estafa); and

Accused resides outside the Philippines.

Take Note:
Attachment can be availed of when civil action is properly instituted
in the criminal action.
KINDS OF PROVISIONAL REMEDIES
1. Attachment;
2. Injunction;
3. Receivership;
4. Delivery of personal property;
5. Support pendent lite.

CRIMINAL PROCEDURE
ADRIENNE O. ESPARES